WYOMIA RAY V RHEEM TEXTILE SYSTEMS INC
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STATE OF MICHIGAN
COURT OF APPEALS
WYOMIA RAY,
UNPUBLISHED
March 19, 2002
Plaintiff-Appellant,
v
RHEEM TEXTILE SYSTEMS, INC., f.k.a. NEW
YORK PRESSING MACHINERY CORP.,
No. 225934
Oakland Circuit Court
LC No. 98-009682-NO
Defendant-Appellee.
Before: O’Connell, P.J., and White and Cooper, JJ.
PER CURIAM.
Plaintiff appeals as of right from a jury verdict of no cause of action in this products
liability case. We affirm.
Plaintiff, who had about twenty years of experience in the pressing and dry cleaning
business, suffered an injury shortly after beginning work at Best Cleaners, when her hand
became trapped in a “New Yorker Ultramatic” garment press. According to plaintiff, as she
pushed her hand into a pants pocket to straighten it out, the head of the machine fell down on her
arm and locked, entrapping it and exposing it to steam heat. Plaintiff suffered severe burns and
had grafts of skin harvested from her leg and transplanted to her left arm, wrist, and hand.
I
Plaintiff first argues that the trial court erred in refusing to allow her to present
“postmanufacture evidence” (specifically post manufacture dealer bulletins and retrofit kits) in
support of a postmanufacture failure to warn theory. Plaintiff contends that defendant had such a
duty, but even if it did not, defendant voluntarily assumed such a duty and discharged it
negligently. We disagree.
Questions regarding duty are for the court to decide as a matter of law and are subject to
de novo review. Benejam v Detroit Tigers, Inc, 246 Mich App 645, 648; 635 NW2d 219 (2001).
A
Plaintiff was allowed to proceed on her traditional design defect theory under the riskutility test. As part of her design defect theory, plaintiff was permitted to argue both that
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defendant’s product was defectively designed from a safety standpoint, and that defendant
breached a point-of-manufacture duty to warn.
In Reeves v Cincinnati, Inc, 176 Mich App 181, 187-188; 439 NW2d 326 (1989), after
remand 208 Mich App 556; 528 NW2d 787 (1995), this Court explained the appropriate riskutility test to be utilized in a traditional design defect case:
To summarize, a prima facie case of a design defect premised upon the omission
of a safety device requires first a showing of the magnitude of foreseeable risks,
including the likelihood of occurrence of the type of accident precipitating the
need for the safety device and the severity of injuries sustainable from such an
accident. It secondly requires a showing of alternative safety devices and whether
those devices would have been effective as a reasonable means of minimizing the
foreseeable risk of danger. This latter showing may entail an evaluation of the
alternative design in terms of its additional utility as a safety measure and its
trade-offs against the costs and effective use of the product. See Prentis [v Yale
Mfg Co, 421 Mich 670, 687, n 24; 365 NW2d 176 (1984)].
This theory of negligence was described as the more “traditional” one of two in Gregory v
Cincinnati, Inc, 450 Mich 1, 11-12; 538 NW2d 325 (1995):
In Michigan, there are two theories that will support a finding of negligent design.
The first theory is based on a failure to warn. This theory renders the product
defective even if the design chosen does not render the product defective. See
Gerkin v Brown & Sehler Co, 177 Mich 45, 57-58; 143 NW 48 (1913); Comstock
[v General Motors Corp, 358 Mich 163; 99 NW2d 627 (1959)]; American Law of
Products Liability, 3d, § 32:2, pp 17-19. This warning includes the duty to warn
about dangers regarding the intended uses of the product, as well as foreseeable
misuses. Antcliff v State Employees Credit Union, 414 Mich 624, 637-638; 327
NW2d 814 (1982). If, however, the manufacturer is not aware of the defect until
after manufacture or sale, it has a duty to warn upon learning of the defect; if
there exists a point-of-manufacture duty to warn, a postmanufacture duty to warn
necessarily continues upon learning of the defect. Comstock, supra; Products
Liability, supra at § 32:79, p 130.
The other, more traditional means of proving negligent design questions whether
the design chosen renders the product defective, i.e., whether a risk-utility
analysis favored an available safer alternative. Prentis v Yale Mfg Co, 421 Mich
670; 365 NW2d 176 (1984). In such a complaint, the focus of any duty begins
with whether the product was defective when it left the manufacturer’s control.
Holloway v General Motors Corp (On Rehearing), 403 Mich 614, 621; 271
NW2d 777 (1978). [Footnote omitted.]
The Gregory Court clarified that only one type of postmanufacture duty is recognized in
this state:
In Michigan to date, the only postmanufacture duty imposed on a manufacturer
has been the duty to warn when the defect existed at the point of manufacture, but
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for some reason was undiscoverable by both the manufacturer and the consumer
at that time. Comstock, supra. However, we have never held that a manufacturer
has a postmanufacture duty to repair or recall in this context, and have never held
that any postmanufacture duties can arise from subsequently discovered
knowledge unattributable to a defect at the time of manufacture. [Gregory, supra
at 17-18; footnotes omitted; emphasis in original.]
The Gregory opinion makes clear that when a party is bringing a traditional design defect
case (the second theory described in the opinion, in which the risk-utility test is used),
postmanufacture evidence (of repairs, safety improvements, technological developments, new
OSHA standards, etc.) may not be used retrospectively to establish that a defect existed at the
time of manufacture. As the Gregory Court explained, in a traditional design defect case
[e]vidence of conduct after the date of manufacture improperly shifts the focus
from the premanufacturing decision and has the potential to taint any finding of
liability. [Gregory, supra at 6.]
Therefore, the only way the postmanufacture dealer bulletins and retrofit kits would have been
admissible in this case is if defendant had a postmanufacture duty to warn. A postmanufacture
duty to warn exists if a defect is “latent” –which is defined as “present but not visible, apparent,
or actualized; existing as potential . . . . ” Random House Webster’s College Dictionary, p 749
(2000). This duty arises regardless of when the latent defect is discovered, including after the
date of manufacture. A post-sale duty to warn may arise—but only if a latent defect existed in
the product at the point of manufacture, “but for some reason was undiscoverable by both the
manufacturer and the consumer at that time.” Gregory, supra at 17-18.
Thus, the admissibility of defendant’s postmanufacture dealer bulletins and retrofit kits
depends on whether plaintiff asserted a latent defect, “undiscoverable” at the point of
manufacture, about which defendant had a duty to warn upon learning. At trial, plaintiff
described this theory (her theory C) as follows:
C.
IT LEARNED OF THE EXISTENCE OF HAZARDS FOLLOWING
THE SALE OF THE NEW YORKER “ULTRAMATIC” PANTS PRESSER
MODEL NO. 1-AAL08S, SERIAL NO. 62376, AND UNDERSTOOD ITS
PRODUCT’S DANGEROUS CHARACTER, BUT FAILED TO WARN OF
THE LATENT HAZARDS.
This characterization implies that defendant “learned” of the press’ dangerous propensity after its
manufacture. It fails, however, to specify what the “latent defect” was.
In Comstock, supra at 168, the plaintiff identified the latent defect that triggered the
postmanufacture duty to warn: brake failure attributed to a manufacturing defect in a sealer that
allowed brake fluid to escape, thereby causing brake loss. Our Supreme Court explained:
If such duty to warn of a known danger exists at point of sale, we believe a like
duty to give prompt warning exists when a latent defect which makes the product
hazardous to life becomes known to the manufacturer shortly after the product has
been put on the market. [Id. at 177-178.]
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However, as the Gregory Court explained:
To support a claim of latency, the plaintiff usually must make “an initial showing
that the manufacturer acquired knowledge of a defect present but unknown and
unforeseeable at the point of sale and failed to take reasonable action to warn of
the defect.” See Patton v Hutchinson Wil-Rich Mfg Co, 253 Kan 741, 761; 861
P2d 1299 (1993); see also Comstock, supra. [Gregory, supra at 20, n 22.]
Accordingly, a party must identify the latent defect of which the manufacturer acquired
knowledge.
Plaintiff failed to identify a latent defect that would support a postmanufacture duty to
warn. Even after the court pushed plaintiff to specify what the latent defect was, plaintiff could
not point to a particular defect, but only to the fact that defendant learned that injuries were
occurring:
THE COURT: What’s the latent defect?
[Plaintiff’s Counsel]: The latent defect again you Honor is the failure - - one, it’s
failure to warn.
THE COURT: That’s not a latent defect.
[Plaintiff’s Counsel]: Number two, the failure to put any guards on these
machines, install the guards on these machines consistent on getting those in the
machines.
THE COURT: It’s design.
[Plaintiff’s Counsel]: I’m sorry, your Honor. The latent defect. The latent defect
is they found out that people were getting their arms, their hands, their wrists
caught between the buck and the head because they were either trampling on the
pedal or activating the bar or the timers were locking down on these people’s
hand. They found out there was something wrong with their machines. They told
their dealers, you must disconnect foot pedals, you must have a head safety guard
if you’ve got a timer on these machines. They also - ***
They had a document in 1977 that said since 1971, we have been sending
bulletins and letters to all dealers as well as to end users allegedly of our air
operating presses advising that pedal-operated presses must be equipped with
head safety guards, we still find that plant owners still disregard our advice and
they allow untrained operators to operate our equipment without the head guard.
That’s just one of the pieces, your Honor. They knew there was something wrong
with their machine. They knew. If you look at the bulletin, it was attached to our
response to their motion to exclude the evidence[,] shows that they knew, they
gave instruction[s to] disconnect the pedal, disconnect the timer, put these head
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safety guards on, put a foot pedal guard on. We still find that these things are
being activated either by hand other [sic] at worse, by foot.
Plaintiff did not describe a latent defect that was responsible for the injuries described.
Rather, plaintiff described injuries and safety devices that were later made available to reduce the
risk of these injuries. Because the only recognized postmanufacture duty to warn in this state
involves latent defects, plaintiff’s failure to specify a latent defect was fatal to this theory of
recovery and the court properly excluded it.
There is an inherent inconsistency between a traditional design defect theory and issues
of latency. As the Gregory Court explained:
In Prentis, we held that design defect cases require a risk-utility balancing test.
Id. at 684, 691. With the focus on conduct rather than simply the product, proof
of a defect by the risk-utility test resolves any issue of latency because the result
of the test is a finding that the manufacturer either knew or should have known of
the danger at the point of manufacture. Accordingly, a design defect cannot,
practically speaking, be deemed undiscoverable at the point of manufacture. In
other words, constructive knowledge imputed to the manufacturer under the state
of the art at the time of design renders the concept of latency at issue in Comstock
moot in a design defect case. There being no issue of latency, the question
becomes whether any postmanufacture duty is imposed. [Gregory, supra at 2122, footnotes omitted.]
Additionally, in footnote 24, the Gregory Court explained:
One commentator has subdivided design defects into two categories at opposite
ends of the spectrum: (1) inadvertent design errors, and (2) conscious design
choices. Henderson, Judicial review of manufacturers’ conscious design choices:
The limits of adjudication, 73 Colum L R 1531, 1547-1550 (1973).
“At one end of the spectrum are risks of harm which originate in the
inadvertent failure of the design engineer to appreciate adequately the
implications of the various elements of his design, or to employ commonly
understood and universally accepted engineering techniques to achieve the ends
intended with regard to the product. At the other end of the spectrum are risks of
harm which originate in the conscious decision of the design engineer to accept
the risks associated with the intended design in exchange for increased benefits or
reduced costs which the designer believes justify conscious acceptance of the
risks. In cases involving liability for inadvertent design errors, the means
employed to reach the intended ends are insufficient: in cases involving liability
for conscious design choices, the intended ends themselves are out of step with
prevailing social policies. [Id. at 1548.]”
In the context of Michigan law, we regard Professor Henderson’s characterization
of inadvertent errors as things the manufacturer “should have known” at the time
of manufacture, see id. at 1550, whereas the conscious design choice is a danger
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that the manufacturer knew, but that the risk utility favored the design chosen. Id.
at 1553.
Conversely, if there was no design defect, i.e., if the jury concludes, as it did in this case, that
there was no inadvertent error in design and no failure in design under a risk-utility analysis, then
there was no defect at the time of manufacture. In such a case, the later notice of injury,
additional developments in safety technology, and more stringent workplace safety standards
cannot render the original design defective. In a design defect case, the risk-utility test operates
to impute a conscious design choice to defendant. In that situation, the alleged defect falls within
this spectrum of “knew or should have known” and any issue of latency (and
“undiscoverability”) is subsumed in this inquiry. Further, the Gregory Court emphasized the
uniqueness of the postmanufacture duty to warn situation in Comstock, distinguishing it from a
traditional design defect case:
In the unique context in which the manufacturer acknowledged the existence of a
latent manufacturing defect, as evidenced by numerous failures and the offer to
repair, the Court imposed a duty to warn. [Comstock,] supra at 175-176. It was
apparent that this subsequently discovered knowledge and increase of the risk of
serious injury required some attempt to prevent the accident. Reasoning that “[i]f
such duty to warn of a known danger exists at point of sale, . . . a like duty to
give prompt warning exists when a latent defect which makes the product
hazardous to life becomes known to the manufacturer shortly after the product has
been put on the market.” Id. at 177-178 (emphasis added). [Gregory, supra, 450
Mich at 18-19, emphasis in original.]
Because no latent defect was identified in this case, and because “if the manufacturer
should have known of the problem, liability attaches at that point, not post manufacture,” the
postmanufacture dealer bulletins and retrofit kits were properly excluded. Any postmanufacture
evidence would have been prejudicial and irrelevant, and plaintiff was properly limited to
introducing evidence showing what defendant knew or should have known at the point of
manufacture in 1965.
We further note that plaintiff was permitted to admit one bulletin regarding dual hand
buttons to impeach defendant’s witness on the issue of feasibility.1 Plaintiff never laid a
foundation to establish that head guard described in the bulletins was within the state of the art at
the time of manufacture, or that the head guard was similar in pertinent respects to the one
plaintiff’s expert recommended and defendant’s expert testified would not be feasible. In fact,
the 1971 bulletin refers to the head guard as “recently” developed. Nor did plaintiff seek to
established that the matters addressed in the bulletins were actually within defendant’s
knowledge when the press was manufactured.
B
1
We note that even this use was questionable as the expert admitted that the buttons could have
been installed at the time of manufacture and never asserted that the use of the buttons was not
feasible, only that they impaired the utility of the press.
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The second portion of plaintiff’s pleadings alleged that defendant voluntarily assumed a
postmanufacture duty to repair, retrofit, or recall its product when it mailed “dealer bulletins” to
its dealers and manufacturers, and that defendant negligently performed this assumed duty by
failing to inform the customers and actual users of the press of subsequent remedial safety
devices.
In her appellate brief, plaintiff described this theory as follows:
B.
IT KNEW OF THE DEFECTS IN ITS PRODUCT, UNDERSTOOD ITS
DANGEROUS CHARACTER, AND UNDERTOOK TO MAKE RETROFIT
GUARDS FOR THE PRESSER BUT NEGLIGENTLY FAILED TO INSTALL
ANY GUARD ON THE NEW YORKER “ULTRAMATIC” PANTS PRESSER
MODEL NO. 1-AAL-8S, SERIAL NO. 62376;
Plaintiff characterized this theory as a “negligent assumption of a duty” theory and
argued that even if, as defendant argued, defendant did not initially have any postmanufacture
duty to warn, it voluntarily assumed such a duty by distributing to its dealers and distributors the
dealer bulletins and retrofit kits postmanufacture. The court excluded this theory of recovery on
the basis that there was no legal authority for this proposition. We agree. Under Gregory, the
law is clear that no postmanufacture duty to repair, retrofit, or recall is recognized in this state.
Gregory, supra at 18.
In Zychowski v A J Marshall Co, 233 Mich App 229, 230; 590 NW2d 301 (1998), the
defendant was a distributor of a food grinder manufactured by General Slicing Machine
Company, Inc.; the plaintiff injured his hand after placing it in the food grinder and brought suit,
alleging that the defendant was negligent in “not responding to, or assisting in, a recall of the
grinder by General Slicing.” This Court reiterated the rule that “in general, a manufacturer or
distributor is under no duty to recall a product,” explaining, id. at 231:
This is particularly true in a case such as this where the grinders were not
defective at the time of manufacture, but, through new technology, may now be
made to be less dangerous. [Gregory, supra at 19-20, footnote omitted.]
Zychowski, supra at 231, acknowledged that “[a] party may be under a legal duty when it
voluntarily assumes a function that it is not legally required to perform” and “[o]nce a duty is
voluntarily assumed, it must be performed with some degree of skill and care.” Id. It is these
propositions upon which plaintiff relies.
Plaintiff contends that defendant is liable because it voluntarily “began a campaign to
warn of dangers associated with the actual use of its products and to inform of new technology
that could be used to make its products less dangerous.” The bulletins demonstrate that
defendant undertook to urge its dealers to strongly encourage their customers to purchase
available safety devices on new or rebuilt presses and to retrofit old presses. The bulletins do
not, however, establish that defendant undertook to locate and notify all current owners of
presses manufactured years before of the need and availability of new safety devices, or of
measures necessary to make the old presses safe. There was no evidence that defendant initiated
a recall. The bulletins only support that defendant urged its dealers to notify press owners of the
advisability and availability of there products.
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II
Next, plaintiff argues that the court erred by instructing the jury that defendant owed no
duty to plaintiff to warn of risks which are obvious and patent to all. We disagree.
Claims of alleged instructional error are reviewed on appeal for an abuse of discretion.
Grow v W A Thomas Co, 236 Mich App 696, 702; 601 NW2d 426 (1999). Jury instructions are
reviewed in their entirety to determine whether they fairly apprised the jury of the applicable law
and the issues to be tried in the case. Id. This Court will not reverse a trial court's decision
regarding supplemental instructions unless failure to vacate the verdict would be inconsistent
with substantial justice. Id.
The revisions to the product liability statute that took effect in 1996 limit the duty to
warn. The accident which is the subject of this case occurred on October 10, 1995. This lawsuit
was filed in October 1998. 1995 PA 249 (specifically, MCL 600.2948) applies to cases filed on
or after the effective date of the amendatory act, which was March 28, 1996. See Historical and
Statutory Note following MCL 600.2925d. Therefore, the 1995 amendments to the Product
Liability Act apply.
MCL 600.2948, which was added as a part of the amendments, provides in pertinent part:
(2) A defendant is not liable for failure to warn of a material risk that is or should
be obvious to a reasonably prudent product user or a material risk that is or should
be a matter of common knowledge to persons in the same or similar position as
the person upon whose injury or death the claim is based in a product liability
action. [Emphasis added.]
The jury in this case was instructed that defendant owed no duty to warn of risks which were
“obvious and patent to all.” This instruction was thus more favorable to plaintiff than what is
provided in MCL 600.2948. Although plaintiff argues that the statute is not intended to apply
where a simple tool is not involved, the statute contains no such language.
Affirmed.
/s/ Peter D. O’Connell
/s/ Helene N. White
/s/ Jessica R. Cooper
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